Justices to hear Md.-Va. dispute on Potomac River water rights

Maryland owns the river under grant by Charles I


WASHINGTON - In the latest state vs. state battle over water rights to reach the Supreme Court, the justices agreed yesterday to decide whether Virginia needs Maryland's permission to draw water from the Potomac River, which forms part of the boundary between the two.

A special master appointed by the court more than two years ago to resolve this chapter of a dispute that dates from the 18th century supported Virginia in a report to the justices late last year. Maryland objected, and the justices announced yesterday that they would hear arguments and decide the matter themselves in the court's next term.

There is no dispute that Maryland owns the river under a land grant from King Charles I to Lord Baltimore in 1632. At issue are the regulatory rights that come with ownership, and it has been evident for centuries that King Charles did not have the last word.

The two states entered into a compact in 1785 that gave each the right to fish and "the privilege of making and carrying out wharfs and other improvements" as long as navigation was not obstructed. Arbitration in 1877, approved by Congress in 1879, placed the interstate boundary at the low-water mark on the Virginia side.

The current dispute began with a 1996 plan by Fairfax County, a fast-growing area on the Virginia side, to replace an old intake pipe with a longer one extending 725 feet into the 2,000-foot-wide river, to avoid muddy water nearer the shore. Maryland contended that the Fairfax County Water Authority needed a permit, which it then refused to issue.

After losing administrative and state court rulings, Maryland yielded and the pipe was built. Virginia pursued the matter by filing a case directly in the Supreme Court to establish its future rights to withdraw water without Maryland's permission. Maryland responded by seeking a broad declaration of its right to control all activities taking place "in the bed and waters of the Potomac River" up to the low-water mark on the Virginia side.

The case, Virginia vs. Maryland, No. 129 Original, has become a symbol of the struggle to control growth and natural resources in a region where the political culture has been one of competition rather than cooperation. After accepting 25 volumes of historical documents and other material, the special master, Ralph I. Lancaster, a lawyer from Portland, Maine, urged the two states to settle their problems amicably through mediation.

But five months of closed-door mediation failed, and Lancaster made his formal recommendation to the justices in December, rejecting Maryland's position and urging the justices to "enter judgment declaring that Virginia and its citizens have the right, free of regulation by Maryland, to construct improvements in the Potomac appurtenant to the Virginia shore and to withdraw water from the Potomac."

He based his decision on several pieces of historical evidence, including a Supreme Court decision in 1910 that recognized Virginia's independent rights to the Potomac.

Under the Supreme Court's so-called "original jurisdiction" to hear disputes between states, the justices can adopt a special master's recommendations or allow the states to make further arguments. Maryland argued in its appeal, known technically as "exceptions to the report of the special master," that "the river belongs to Maryland and is subject to Maryland's sovereign and regulatory authority." Maryland said Virginia had long acquiesced in that understanding.

Virginia argued in response that it had objected since 1976 to Maryland's insistence on its right to review requests to withdraw water, but that the issue had not been joined until this dispute, because Maryland had previously always granted the permission that Virginia sought.

Fairfax County had received a series of approvals from Maryland to increase withdrawals from the river, which now provides about half the county's water supply. Because of a surging population, Virginia's demands on the river have grown faster than those of Maryland, and the river is under increasing pressure from withdrawals that now average 400 million gallons a day, up 19 percent from those of 10 years ago.

These were among the other developments at the court yesterday:

Abortion regulations: Without comment, the court turned down a challenge to a South Carolina requirement that gives state health officials access to abortion clinic patients' individual records, as well as to a requirement that a member of the clergy be on call for consultation with patients.

In its appeal of a ruling by the 4th U.S. Circuit Court of Appeals, in Richmond, Va., the Greenville Women's Clinic argued that the access provision violated patients' right to privacy, while the clergy requirement was an unconstitutional endorsement of religion.

Ten Commandments: Without comment, the court refused to hear an appeal by the state of Kentucky of a ruling by the 6th U.S. Circuit Court of Appeals, in Cincinnati, that the state's plan to erect a 6-foot Ten Commandments monument on the state Capitol grounds in Frankfort lacked a valid secular purpose and was unconstitutional.

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